STATE OF WASHINGTON
ETHICS ADVISORY COMMITTEE
OPINION NO. 92-13
Question
Is it a violation of CJC Canon 3(C)(1) for a judicial officer in a
contested hearing held pursuant to RCW 46.63.090 to read the affidavit of
the citing officer as provided in RCW 46.63.080? Specifically, is a
judicial officer acting as a lawyer in the proceeding by taking the
initiative of reading an affidavit that has only been filed and not
introduced into evidence with the court? Does this participation by the
judicial officer require the judicial officer be disqualified from the
proceeding?
Answer
No. CJC Canon 3(C)(1) provides that judicial officers should
disqualify themselves in any proceedings in which their impartiality might
reasonably be questioned, including any hearing where the judicial officer
serves as a lawyer in the matter in controversy. Other provisions of state
law prohibit a full time judicial officer from practicing law.
RCW 46.63.090 specifically authorizes a judicial officer to consider
in a contested hearing any written report made under oath submitted by the
officer, or whose written statement served as the basis for the issuance of
a notice of infraction.
The reading and consideration of such reports by a judicial officer in
the absence of formal introduction into evidence of such reports by a
lawyer representing the prosecuting authority, have been specifically
authorized by state law. Such activities do not constitute the practice of
law by the judicial officer, do not make the judicial officer an advocate
for the prosecuting authority, and would not reasonably cause the judicial
officer's impartiality to be questioned. The judicial officer who reads
and considers such reports, would not, therefore, be disqualified from
further participation in such a hearing, nor does such action by a judicial
officer constitute a violation of the Code of Judicial Conduct.